United States v. Scheer ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-10564
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD SCHEER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:04-CR-17-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Leonard Scheer appeals his 120-month sentence following his
guilty plea to being a felon in possession of a firearm. He
seeks to challenge his sentence in light of United States v.
Booker, 543 U.S. 220 (2005). Scheer first avers that the
district court erred by not incorporating, through “reverse
incorporation,” the Ex Post Facto Clause into the Due Process
Clause of the Fifth Amendment. He contends that such
incorporation would protect defendants like him, whose offenses
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-10564
-2-
were committed prior to Booker, by prohibiting the court from
imposing a greater sentence under the now advisory guideline
scheme than was permitted under the mandatory guideline scheme.
This argument is foreclosed. See United States v. Austin,
432 F.3d 598, 599-600 (5th Cir. 2005).
Scheer makes the related arguments that the district court
violated his right to “fair notice under the Due Process Clause
of the Fifth Amendment” by enhancing his sentence based on facts
that were not charged in the indictment and were neither admitted
by him nor found by a jury beyond a reasonable doubt. Scheer
contends that the remedial portion of Booker’s holding may not be
applied in his case without violating the Due Process and Ex Post
Facto Clauses. Scheer thus argues that the district court should
have applied the Sentencing Guidelines as mandatory in his case
but should not have enhanced his sentence based on facts that
were not charged in the indictment and were neither admitted by
him nor found by a jury beyond a reasonable doubt. Scheer
recognizes that this court has rejected these arguments.
Scheer’s arguments are foreclosed. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir.) (the “sentencing judge is
entitled to find by a preponderance of the evidence all facts
relevant to the determination of a Guideline sentencing range and
all facts relevant to the determination of a non-Guideline
sentence”), cert. denied, 126 S. Ct. 43 (2005); see also Austin,
No. 05-10564
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432 F.3d at 599-600. The judgment of the district court is
AFFIRMED.